Commonwealth v. Waller

Opinion, Mb. Chief Justice Paxson: This was a writ of quo warranto, issued at the relation of the attorney general, directed to D. J. Waller, Jr., requiring him to show by what authority he claims to exercise the duties of superintendent of public instruction of the commonwealth of Pennsjdvania. The facts may be briefly stated as follows: On the fourteenth day of February, 1890, Governor Beaver appointed and commissioned the respondent, D. J. Waller, Jr., as superintendent of public instruction, vice E. E. Higbee, deceased. In pursuance of this appointment, the respondent duly qualified, entered upon the performance of the duties of said office, and has continued therein until this time. The senate was not in session at the time of this appointment. The next session of the senate thereafter began on the first Tuesday of January, 1891; and on the sixth day of the same month, James A. Beaver, being still governor, nominated the respondent to the senate for confirmation to said office for the term of four years, to date from the first day of March, 1890, and on the twentieth day of the same month (January) the senate [256] confirmed such nomination and appointment. It is a part of the history of the case that Governor Beaver went out of office on the said twentieth day of January, and Robert E. Pattison was on the same day duly inaugurated as governor in his place. No commission was issued to the respondent by Governor Pattison. On the contrary, he appointed one Z. X. Snyder to said office, which apppointment was rejected by the senate on May 28,1891. On the day after the senate adjourned, the governor appointed and commissioned said Snyder to said office for the full term of four years, notwithstanding his rejection by the senate. With the validity of the latter appointment we have nothing to do. Our inquiry is merely as to the right of the respondent to hold the office. There are three things about which there is no dispute, viz.: (a) There was a vacancy; (5) the vacancy was filled by appointment by the governor; and (e) the governor’s appointee was confirmed by the senate. How long is the respondent entitled to'hold the office under this appointment and confirmation by the senate ? For the solution of this question we must loot to article 4, § 8, of the constitution, which provides: “ Pie (the governor) shall nominate, and,- by and with the advice and consent of the two thirds of all members of the- senate, appoint a secretary of the commonwealth and an attorney general, during pleasure, a superintendent of public instruction for four years, and such other officers of the commonwealth as he is or may be authorized by the constitution or by law to appoint. He shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the senate, by granting commissions which shall expire at the end of their next session. He shall have power to fill any vacancy that may happen during the recess of the senate in the office of auditor general, state treasurer, secretary of internal affairs, or superintendent of public instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the senate, the governor shall nominate to the senate before their final adjournment a proper person to fill said vacancy, but in any such case of vacancy in an elective -office a person [257] shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.” This clause of the constitution is by no means clear. It will be noticed, however, that there are two classes of vacancies to be filled by appointment by the governor, viz., those that relate to elective offices, and those that are non-elective. In the former, the governor can only fill a vacancy until such time as the people can fill it by an election as provided by law. Hence the commission of the governor can run no further. In the other case, non-elective offices, no time is designated during which his appointee can hold, except the single provision that, if a vacancy shall occur during the recess of the senate, he shall be commissioned until the expiration of the next session. This simply means that his appointee to this class of offices shall be confirmed by the senate; otherwise his incumbency expires with its adjournment. But if confirmed, he is entitled to hold for the balance of the unexpired term. He appoints to fill the vacancy. What is the vacancy ? Clearly the term of office left' unfilled when not otherwise provided for. Governor Beaver exercised this power; he filled the vacancy occasioned by the death of Higbee, and his appointee having been confirmed by the senate, the respondent is in office by virtue of an appointment properly made under the constitution and laws of the state. The confirmation of respondent by the senate necessarily extends his original appointment for the balance of the unexpired term. The judgment is reversed, and judgment is now entered in favor of the respondent.